Progressive Casualty Insurance v. Dursi (206 A.D.2d 484, 1994)

In a proceeding pursuant to CPLR article 75 to stay arbitration of an underinsured motorist claim, Angela Dursi appeals from a judgment of the Supreme Court, Suffolk County (Luciano, J.), dated November 27, 1992, which granted the petitioner’s application to stay arbitration.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly granted the petitioner’s application to stay arbitration. The appellant was not entitled to underinsured motorist benefits under the petitioner’s excess policy. The terms of the petitioner’s supplementary uninsured motorist endorsement provides that the appellant’s primary underinsurance coverage would be deducted from the maximum amount he could recover under the petitioner’s excess policy (see, Berger v Public Serv. Mut. Ins. Co., 177 AD2d 280; see also, Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894). Rosenblatt, J. P., Lawrence, Copertino and Joy, JJ., concur.